How to File for Divorce in New York 2026: Complete Guide

Filing for divorce in New York involves understanding residency requirements, grounds for divorce, equitable distribution of property, and the court process. New York was the last state to adopt no-fault divorce in 2010, making it easier to end a marriage without proving wrongdoing. This guide covers everything you need to know about divorcing in New York.

Grounds for Divorce in New York

New York Domestic Relations Law § 170 provides seven grounds for divorce:

No-Fault Grounds

Irretrievable Breakdown (DRL § 170(7)) - Most Common

• Marriage has been irretrievably broken for at least 6 months
• No need to prove fault or wrongdoing
• Must resolve all economic issues (property, support, custody)
• Most divorces filed under this ground since 2010

Fault-Based Grounds

While less common, you can still file based on fault:

1. Cruel and Inhuman Treatment (DRL § 170(1))

• Physical or mental cruelty making it unsafe or improper to continue living together
• Must show specific acts within 5 years before filing

2. Abandonment (DRL § 170(2))

• Spouse left for at least 1 year continuously without consent
• OR "constructive abandonment" (refusal of sexual relations for 1+ year)

3. Imprisonment (DRL § 170(3))

• Spouse imprisoned for 3+ consecutive years after marriage
• Must file while still imprisoned or within 5 years of release

4. Adultery (DRL § 170(4))

• Spouse committed adultery
• Cannot be based solely on confession - need corroborating evidence
• Must file within 5 years of discovering adultery
• Rarely used due to difficulty of proof

5. Living Separate and Apart (DRL § 170(5) & (6))

• Living apart for 1+ year under separation agreement, OR
• Living apart for 1+ year under court decree of separation

Residency Requirements

New York has strict residency requirements (DRL § 230):

You Can File in New York If:

Option 1: 2-Year Continuous Residency

• Either spouse has lived in NY continuously for at least 2 years before filing
• Applies regardless of where you married or grounds for divorce

Option 2: 1-Year Residency + Married in NY

• Either spouse lived in NY continuously for 1 year, AND
• You were married in New York

Option 3: 1-Year Residency + Lived in NY as Married Couple

• Either spouse lived in NY continuously for 1 year, AND
• You lived in NY together as a married couple

Option 4: 1-Year Residency + Grounds Arose in NY

• Either spouse lived in NY continuously for 1 year, AND
• The grounds for divorce occurred in New York

Option 5: Both Spouses NY Residents + Grounds in NY

• Both spouses are NY residents when filing, AND
• The grounds for divorce occurred in New York
• No minimum time requirement

The Divorce Process in New York

Types of Divorce

Uncontested Divorce

• Both spouses agree on all issues (property, custody, support)
• Faster and cheaper (3-6 months typically)
• Can use DIY Uncontested Divorce Forms packet from courts
• May not require court appearance

Contested Divorce

• Spouses disagree on one or more issues
• Requires litigation, discovery, possibly trial
• Can take 1-3+ years
• Attorney strongly recommended

Step-by-Step Filing Process

Step 1: Prepare and File Summons and Complaint/Verified Complaint

• Summons with Notice: Simple notice of divorce (no details), OR
• Summons and Verified Complaint: Includes grounds and what you're asking for
• File in Supreme Court (NY's trial court for divorce)
• File in county where either spouse resides

Filing Fee: $335 (varies by county, may include surcharges)

Fee Waiver: Available if you cannot afford fee (file Poor Person's Order)

Step 2: Serve Your Spouse

• Personal service by someone over 18 (not you)
• Service by certified mail (if spouse agrees to accept)
• Service by publication (if spouse cannot be located - requires court permission)
• Proof of service filed with court

Step 3: Spouse's Response

• Defendant has 20 days to respond (30 days if served by mail)
• Can file Answer (agree/disagree with allegations)
• Can file Answer with Counterclaim (own divorce demands)
• Failure to respond = default divorce possible

Step 4: Discovery and Negotiation

• Exchange financial disclosure (Statement of Net Worth)
• Discovery (interrogatories, depositions, document requests)
• Negotiation and settlement discussions
• Mediation or settlement conferences

Step 5: Settlement or Trial

• If settled: Submit Settlement Agreement and Judgment of Divorce
• If not settled: Trial before judge (no jury in divorce cases)
• Judge issues Findings of Fact and Judgment of Divorce

Step 6: Final Judgment

• Judge signs Judgment of Divorce
• Divorce is final when judgment entered with county clerk
• Either party can remarry after judgment entered

Property Division - Equitable Distribution

New York is an equitable distribution state (DRL § 236(B)), not community property:

Marital vs. Separate Property

Marital Property (Subject to Division)

• All property acquired during marriage, regardless of whose name it's in
• Increase in value of separate property due to spouse's efforts
• Retirement accounts accumulated during marriage
• Businesses started or grown during marriage

Separate Property (Not Divided)

• Property owned before marriage
• Inheritance or gifts received by one spouse (even during marriage)
• Personal injury awards (except for lost earnings)
• Property designated as separate in a prenuptial/postnuptial agreement

How Courts Divide Property

Equitable means "fair," not necessarily "equal." Courts consider:

• Length of marriage
• Age and health of each spouse
• Income and earning capacity
• Need for custodial parent to remain in marital home
• Loss of inheritance and pension rights
• Contributions as homemaker
• Wasteful dissipation of assets by either spouse
• Tax consequences
• Any other factor the court deems relevant

Spousal Support (Maintenance)

New York uses statutory formulas to calculate temporary and post-divorce maintenance:

Types of Maintenance

Temporary Maintenance (DRL § 236(B)(5-a))

• Paid during divorce proceedings
• Based on statutory formula using income
• Court can deviate based on factors

Post-Divorce Maintenance (DRL § 236(B)(6))

• Paid after divorce finalized
• Amount based on formula (similar to temporary)
• Duration based on length of marriage:
  • 0-15 years: 15-30% of marriage length
  • 15-20 years: 30-40% of marriage length
  • 20+ years: 35% of marriage length to permanent

Maintenance Formula (Simplified)

For marriages where payor earns up to $203,000 (2026 cap, adjusted annually):

• Calculate 20% of payee's income
• Calculate 30% of payor's income
• Subtract first from second
• OR: Calculate 40% of combined income, subtract payee's income
• Use lower of the two calculations

Example:

• Payor earns: $100,000
• Payee earns: $30,000
• Method 1: 30% of $100k = $30k, minus 20% of $30k ($6k) = $24,000/year
• Method 2: 40% of $130k = $52k, minus $30k = $22,000/year
• Result: $22,000/year (lower amount)

Child Custody and Visitation

New York courts determine custody based on "best interests of the child" (DRL § 240):

Types of Custody

Legal Custody

• Right to make major decisions (education, healthcare, religion)
• Can be sole or joint

Physical Custody (Residential Custody)

• Where child lives day-to-day
• Primary physical custody with visitation to other parent, OR
• Joint physical custody (50/50 or close to it)

Factors Courts Consider

• Which parent was primary caretaker
• Quality of home environment each parent provides
• Parental fitness and mental/physical health
• Work schedules and ability to care for child
• Child's relationship with each parent and siblings
• Child's preference (if child is mature enough, usually 12+)
• Domestic violence history
• Substance abuse issues
• Each parent's willingness to foster relationship with other parent

Child Support

New York uses the Child Support Standards Act (CSSA) with specific percentages:

Child Support Formula

Based on combined parental income up to $163,000 (2026 cap, adjusted biennially):

Calculation Steps

1. Calculate each parent's gross income
2. Subtract FICA, NYC tax, and other deductions
3. Determine combined parental income
4. Apply percentage based on number of children
5. Pro-rate based on each parent's share of income
6. Non-custodial parent pays their share

Additional Expenses

Beyond basic support, parents may share:

• Childcare costs
• Healthcare expenses not covered by insurance
• Educational expenses
• Extracurricular activities

Divorce Costs in New York

Frequently Asked Questions

How long does a divorce take in New York?

Uncontested divorces typically take 3-6 months from filing to final judgment. Contested divorces average 1-3 years depending on complexity and court backlog. New York City divorces often take longer due to higher case volume.

Can I get a divorce without my spouse's consent in New York?

Yes. The no-fault "irretrievable breakdown" ground does not require your spouse's agreement to the divorce itself, only that economic issues be resolved. If your spouse doesn't respond to the divorce papers, you can proceed by default.

Do I need a lawyer to get divorced in New York?

Not required, but recommended. Simple uncontested divorces with no children or property can be handled DIY using court forms. However, if you have children, significant assets, or disagreements, an attorney is strongly advised. Many attorneys offer unbundled services for specific tasks.

Is New York a 50/50 divorce state?

No. New York uses "equitable distribution," meaning fair but not necessarily equal. Courts consider many factors and often divide property 50/50 in longer marriages, but can award more or less to either spouse based on circumstances.

What if my spouse lives in another state?

You can still file for divorce in New York if you meet residency requirements. You must properly serve your spouse in the other state. The NY court can grant the divorce and make custody/support orders, but may have limited jurisdiction over property located in other states.